Arbitration International, 2016, 32, 559–574

doi: 10.1093/arbint/aiw025
Advance Access Publication Date: 21 July 2016
Article

The enforceability of emergency awards in the

United States: or when interim means final
William G. Bassler*,†

ABSTRACT
Whether or not the relatively recent amendments to the rules of arbitral institutions

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providing for the appointment for an emergency arbitrator before the panel is consti-
tuted is a response to a perceived or a real need, the emergency arbitrator has arrived
and is here to stay. While that much is certain, what is uncertain is whether the deci-
sions of the emergency arbitrator will be judicially enforced. After summarizing the var-
ious institutional rules providing for the emergency arbitrator, this article explores the
rationale in the jurisprudence of the USA as to when interim awards are enforceable
and when they are not and concludes that under the right circumstances that rationale
is equally applicable to the enforcement of emergency awards. In reaching this conclu-
sion, this article discusses the only two published cases to date in the USA that address
whether, under the Federal Arbitration Act, a court has jurisdiction to enforce or vacate
an emergency award.

In the USA as elsewhere, arbitrators issue interim orders, interim awards, and partial
final awards. More recently, however, arbitrators have been issuing emergency mea-
sures of protection before the panel has even been formed. This is a relatively new
phenomenon as a result of the major arbitral institutions having amended their rules
over the past 10 years to allow a party to obtain urgent temporary relief before the
tribunal is even constituted.1 Reports and surveys by institutional providers

* The Honorable William G Bassler, FCIArb, is a retired US District Court Judge of New Jersey. He is ac-
tively mediating and arbitrating as well as teaching Arbitration as an adjunct professor at Fordham
University School of Law. He is a member of ALI’s Consultative Group on the Restatement Third, The
US Law of International Commercial Arbitration. For more information, please visit www.wgbdisputereso
lution.com. Judge Bassler was assisted in writing this article by Leah Kristina Charlesworth. Ms
Charlesworth is a JD candidate (2016) at Fordham University School of Law.
†
This article is adapted from a presentation given at the Fordham Conference on International Arbitration
on 4 November 2015, forthcoming in Arthur W Rovine (ed), Contemporary Issues in International
Arbitration and Mediation: Fordham Papers 2015, Nijhoff/Brill, publishers
1 Institutions early adopting provisions for emergency relief were: the International Center for Dispute
Resolution (ICDR) in 2006 updated in 2014; the Singapore International Arbitration Centre (SIAC) in
2010 updated in 2013; the Stockholm Chamber of Commerce (SCC) in 2010; and the Netherlands
Arbitration Institute (NAI) in 2010. Institutions that later adopted emergency arbitrator provisions in
their rules include: the Swiss Chambers Arbitration (Swiss Chambers) in 2012; the American Arbitration
Association (AAA) in 2013; the International Institute for Conflict Prevention & Resolution (CPR) in
2013; the Hong Kong International Centre (HKIC) in 2013; the London Court of International

C The Author 2016. Published by Oxford University Press on behalf of the London Court of International Arbitration.
V
All rights reserved. For Permissions, please email: journals.permissions@oup.com

 559
560  Enforceability of emergency awards

demonstrate that these rules permitting emergency relief are not just on the books
but are in fact increasingly being utilized in an increasing number of cases.2
As of 6 March 2015, 49 applications for emergency measures were filed pursuant to
the procedures of the International Centre for Dispute Resolution (ICDR).3 Since the
International Chamber of Commerce (ICC) adopted its emergency procedures in
2012, 13 applications have been filed for emergency measures through 2014.4 As of
March 2015, 42 parties have sought relief under the Singapore International Arbitration
Centre’s (SIAC) Emergency Measures provisions.5 According to the Stockholm
Chamber of Commerce (SCC), parties submitted thirteen applications under its emer-
gency arbitrator procedures from 2010 to 2014, four of which were lodged in 2014.6
Although the emergency arbitrator may be in vogue, there is a shadow side to its

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use: the uncertainty of the arbitral community as to whether emergency awards can
be judicially enforced. This misgiving helps to explain why parties prefer to use rele-
vant domestic courts for emergency relief.7 The uncertainty about the enforceability
of emergency arbitration arises from the concern that emergency awards, like interim
awards, are not considered to be final awards.8 At the international level, the doubt
about enforcement under the New York Convention arises because interim decisions
do not dispose of all the claims submitted.9 The New York Convention obliges con-
tracting states to grant recognition and enforcement to foreign arbitral awards.10
However, the decisions of emergency arbitrators are not always classified as ‘awards’
under institutional rules, and if the decision takes the form of an order or is not
Arbitration (LCIA) in 2014; JAMS in 2014; and China International Economic and Trade Arbitration
Commission Arbitration Rules (CIETAC) in 2015.
2 The following numbers show the number of applications received as of March 2015 for each arbitral insti-
tution, in comparison to when the institution adopted emergency arbitrator provisions.
ICDR - 2006; 49 applications received; 24 cases applicant was successful in obtaining full or
partial emergency measures; applicant was unsuccessful in 14; 8 cases settled; 2 withdrawn
SCC - 2010; 13 applications received;
ICC - 2012; 15 applications received; 4 granted; 4 denied; 4 terminated by agreement;
AAA - 2013; 15 applications received; 4 decisions made; 3 cases withdrawn; 5 settled; 1
resulted in a final award
HKIAC - 2013; 2 applications received
JAMS - 2014; 6 applications received; 3 went to a decision; 1 settled
LCIA - 2014; 0 applications received
See E Sussman and A Dosman, Evaluating the Advantages and Drawbacks of Emergency Arbitrators,
New York Law Journal Special Report on Alternative Dispute Resolution, 3–4 (March 2015).
3 Sarah Vasani, ‘The Emergency Arbitrator – An Effective Option for Urgent Relief’ (2015) 17 Young Arb
Rev 4.
4 ICC Statistics <http://www.iccwbo.org/Products-and-Services/Arbitration-and-ADR/Arbitration/
Introduction-to-ICC-Arbitration/Statistics/ > (accessed 30 March 2016).
5 N Vivekanada, ‘The SIAC Emergency Arbitrator Experience’ (2014) 19 Corp Dis Res Mag.
6 Lotta Knapp, Five Years of Emergency Arbitrator Proceedings Under the SCC Rules <http://www.sccinsti
tute.com/media/62010/vinge-6604011-v1-berlin-_presentation_knapp_150306-2.pdf> accessed 8 July 2016.
7 See White and Case, 2015 International Arbitration Survey: Improvements and Innovations in International
Arbitration, (2015) 22, <http://www.arbitration.qmul.ac.uk/docs/164761.pdf> accessed 8 July 2016.
8 See ibid 17. Stating that 79% of respondents point to concerns about the enforceability of emergency ar-
bitrator decisions as one of the most important factors influencing their choice between seeking emer-
gency relief from an arbitral tribunal versus a domestic court.
9 Convention on the Recognition and Enforcement of Foreign Arbitral Awards (1958).
10 ibid art 3 and 5 (1958).
 Enforceability of emergency awards  561

considered final, it is unlikely that the decision will be enforceable under the New
York Convention.11 A similar uncertainty also arises with respect to emergency
awards under the Federal Arbitration Act (FAA).12
The cases on enforcement of interim awards are many, but cases on the enforce-
ment of emergency decisions are few. This article will evaluate the validity of the ob-
jection that emergency awards are ineffective because they are unenforceable by
examining judicial opinions in the USA that have held interim arbitral decisions to
be enforceable as final awards in arbitrations under the FAA and domestic arbitra-
tions under the New York Convention. Does the rationale that supports enforcing
interim awards apply equally to rulings of an emergency arbitrator?

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1 . W H A T I S EM E R G E N CY RE L IE F ?
Before exploring the issue of finality as it applies to interim measures, we will first
take a closer look at how various arbitral institutions implement the concept of emer-
gency relief by a single emergency arbitrator appointed by the institution as distin-
guished from interim measures by the fully constituted panel or tribunal. The words
of Article 29 of the ICC Arbitration Rules provide a serviceable definition: emer-
gency relief refers to ‘a party that needs urgent interim or conservatory measures
that cannot await the constitution of an arbitral tribunal’.13 In the language of the
London Court of International Arbitration Rules (LCIA Rules), a party seeking such
relief must submit an application that includes ‘the specific claim, with reasons, for
emergency relief’.14 Similarly, the International Centre for Dispute Resolution Rules
(ICDR Rules) Article 6 speaks in terms of allowing a party to ‘apply for emergency
relief’.15 Rule 38 of the Commercial Arbitration Rules and Mediation Procedures of
the American Arbitration Association (AAA Rules) captures the concept of urgent
emergency relief by saying that ‘immediate and irreparable loss or damage shall result
in the absence of emergency relief’.16
The Stockholm Chamber of Commerce Rules (SCC Rules) and the Hong Kong
International Arbitration Centre Administered Arbitration Rules (HKIAC Rules) are
the only set of rules to explicitly use the term ‘emergency’ with respect to the order
or award itself. Specifically, SCC Rules Appendix II Emergency Arbitrator, Article 8
refers to an emergency arbitrator’s award or order as an ‘emergency decision’.17

11 Guillaume Lemenez and Paul Quigley, ‘The ICDR’s Emergency Arbitrator Procedure In Action Part II:
Enforcing Emergency Arbitrator Decisions’, (2009) 63 Disp Resol. J. 66, 68–69.
12 Federal Arbitration Act, 9 USC paras 1–16 (2012); see also Chinmax Med. Sys. Inc. v. Alere San Diego,
Inc., No 10CV2467 WQH NLS, 2011 WL 2135350, 5 (SDCal 27 May 2011) (refusing to vacate order of
emergency arbitrator under ICDR Rules ordering production of documents to insure registration re-
newals on ground that it lacked jurisdiction over non final decisions).
13 Intl Chamber of Commerce, Rules of Arbitration art 29 (2012) <http://www.iccwbo.org/products-and-
services/arbitration-and-adr/arbitration/icc-rules-of-arbitration/> accessed 8 July 2016.
14 LCIA, Rules art 9.5 (2014) <http://www.lcia.org/Dispute_Resolution_Services/lcia-arbitration-rules-
2014.aspx> accessed 8 July 2016.
15 ICDR, Arbitration Rules art 6 (2014) <https://www.icdr.org/icdr/ShowProperty?nodeId¼/UCM/
ADRSTAGE2020868&revision¼latestreleased> accessed 8 July 2016.
16 AAA, Commercial Arbitration Rules and Mediation Procedures rule r-38(e) (2013) <https://www.adr.org/
aaa/ShowProperty?nodeId¼/UCM/ADRSTG_004103&revision¼latestreleased> accessed 8 July 2016.
17 Stockholm Chamber of Commerce, SCC Arbitration Rules 2010 appendix II art 8 (2010) <http://www.
sccinstitute.com/media/40120/arbitrationrules_eng_webbversion.pdf> accessed 8 July 2016.
562  Enforceability of emergency awards

The HKIAC Rules Article 23.1 defines ‘emergency relief’ as ‘urgent interim or con-
servatory relief’18 and in Appendix 4 further refers to the emergency arbitrator’s deci-
sion as the ‘emergency decision’.19
The emergency arbitrator’s decision is referred to by most institutions as an order
or award. Article 6 of the ICDR Rules (amended and effective 1 June 2014) provides
that ‘the emergency arbitrator shall have the power to order or award any interim or
conservancy measures the emergency arbitrator deems necessary’.20 And Article 6(4)
s that ‘any interim award or order shall have the same effect as an interim measure
made pursuant to Article 24 and shall be binding on the parties when rendered’.21
Article 24 of the ICDR Rules provides that ‘the arbitral tribunal may order or award
any interim or conservatory measures it deems necessary’ and that ‘such interim
measures may take the form of an interim order or award’.22 The ICDR Rules use

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the term ‘interim’ for both emergency measures sought before a tribunal has been
constituted, and interim measures sought after a tribunal has been constituted. The
ICC Rules shy away from referring to the decision of the emergency arbitrator as an
award, requiring in Article 20(2) that the emergency arbitrator’s decision shall ‘take
the form of an order’. On the other hand, the AAA Rules explicitly empower an
emergency arbitrator to ‘enter an interim order or award granting the relief and stat-
ing the reason therefore’.23 The AAA Rules also refer to the interim award as an ‘in-
terim award of emergency relief’.24 JAMS Comprehensive Arbitration Rules and
Procedures (JAMS Rules) use the terms ‘emergency relief’, ‘order’, and ‘award’. Rule
2 for Party Self-Determination and Emergency Relief Procedure refers to ‘emergency
relief’, and Rule 2(c)(iv) provides that ‘the Emergency Arbitrator shall enter an order
or Award granting or denying the relief, as the case may be, and stating the reasons
therefor’.25
The CPR Administered Arbitration Rules do not refer specifically to emergency
relief, award, or order. Instead, Rule 14 provides for ‘Interim Measures of Protection
by a Special Arbitrator’.26 The special arbitrator may state in such award or order
whether or not the award or order is final for purposes of any judicial proceedings.27
While the terminology is different, the process for obtaining emergency relief is ba-
sically the same and relatively straightforward. The party seeking emergency relief
must file a written request for emergency relief with the arbitral institution.28 And

18 HKIC, Administered Arbitration Rules art 23.1 (2013) <http://www.hkiac.org/sites/default/files/ck_file

browser/PDF/arbitration/2013_hkiac_rules.pdf> accessed 8 July 2016.
19 ibid appendix 4, art 16.
20 ICDR Arbitration Rules art 6(1)–(2) (n 15)
21 ibid art 6(4).
22 ibid art 24.
23 AAA (n 16).
24 ibid r-38.
25 JAMS, Comprehensive Arbitration Rules and Procedures art 2(c)(iv) (2014) <http://www.jamsadr.com/files/
Uploads/Documents/JAMS-Rules/JAMS_comprehensive_arbitration_rules-2014.pdf> accessed 8 July 2016.
26 Intl Institute for CPR, Administered Arbitration Rules r 14 (2013) <http://www.cpradr.org/
RulesCaseServices/CPRRules/AdministeredArbitrationRules.aspx> accessed 8 July 2016.
27 ibid r 14.10.
28 See HKIC, (n 18) Administered Arbitration Rules schedule 4, art 2; AAA (n 16) r-38(b); Intl Chamber
of Commerce, Rules of Arbitration art 29 (1)(2012) ; Intl Ctr for Dispute Resolution (n 15); LCIA (n
14) Rules art 9.4–9.5 (2014) .
 Enforceability of emergency awards  563

although the time frames differ, the rules uniformly provide for the speedy appoint-
ment of a solo emergency arbitrator by the institution.29 The emergency arbitrator
then has to promptly schedule a hearing and issue an award or an order. If a party
demonstrates that it is entitled to emergency relief because immediate and irreparable
loss or damage will otherwise result, the emergency arbitrator may grant such relief.30

2 . T HE E XP ER IE N CE OF T HE E NF O RC E AB I LI TY OF I N TER I M
AWARDS
While the solo emergency arbitrator is a relatively new kid in the arbitral neighbour-
hood, panel-appointed arbitrators issuing interim orders and awards are familiar
faces. The major arbitral institutions have uniformly provided that the arbitral panel

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has the authority to issue interim measures deemed necessary for the protection or
conservation of property.31 And the 2006 Amendment of Article 17 to the original
1985 version of the UNCITRAL Model Law32 authorizes the arbitral tribunal to is-
sue interim measures to maintain or restore the status quo pending resolution of the
dispute; (a) to take any action to preclude anything likely to cause imminent harm
or prejudice to the arbitral process itself; (b) to preserve assets to ensure satisfaction
of a subsequent award, or (c) preserve relevant or material evidence.33
Because interim awards, including emergency awards, can be rescinded or varied
by the tribunal, the prevailing international view holds that they are not final awards
and therefore are not entitled to be judicially enforced.34 On the other hand, the mi-
nority position relaxes the finality requirement by construing it broadly so as to allow
courts to enforce emergency awards or provisional measures.35
Under the New York Convention (applicable to international arbitration awards
enforced in states adopting the convention), an award must be binding to be recog-
nized and enforced.36 Although the New York Convention does not explicitly state

29 Intl Chamber of Commerce, Rules of Arbitration appendix V, art 2 (1)(2012) <http://www.iccwbo.org/

products-and-services/arbitration-and-adr/arbitration/icc-rules-of-arbitration/> accessed 8 July 2016;
ICDR (n 15) art 6(3); AAA (n 16) r-38.
30 Peter Michaelson, ‘When Speed and Cost Matter: Emergency and Expedited Arbitration’ (2014) 218
NJLJ 50; see also Joe Matthews and Karen Stewart, ‘Time to Evaluate the Standards for Issuance of in-
terim Measures of protection in International Investment Arbitration’ (2009) 25(4) Arb Intl 529.
31 See AAA (n 16) r-37; ICDR, (n 15) art. 24; Conflict Prevention and Resolution, Administered
Arbitration Rules r 14 (non administered) (2013) <http://www.cpradr.org/Portals/0/Admini
stered%20Arbitration%20Rules-%20July%201.pdf> accessed 8 July 2016.
32 <http://www.uncitral.org/pdf/english/texts/arbitration/ml-arb/07-86998_Ebook.pdf> accessed 8 July
2016.
33 See Lee Anna Tucker, ‘Interim Measures under Revised UNCITRAL Arbitration Rules: Comparison to Model
Law Reflects both Greater Flexibility and Remaining Uncertainty’ (2011) Intl Comm Arb Brief 1, no 2: 15–23.
34 Peter JW Sherwin and Douglas C Rennie, ‘Interim Relief Under International Arbitration Rules and
Guidelines: A Comparative Analysis’ (2010) 20 Am Rev Intl Arb 317, 326; see also Paata Simsive, ‘Indirect
Enforceability of Emergency Arbitrator’s Orders’ (Kluwer Arbitration Blog, 15 April 2015) <http://kluwerar
bitrationblog.com/2015/04/15/indirect-enforceability-of-emergency-arbitrators-orders/> accessed 8 July
2016; see also Marc S Palay and Tanya Landon, ‘A Comparative Review of Emergency Arbitrator
Provisions: Opportunities and Risks’ The Int’l Comparative Legal Guide to Int’l Arb (9th edn, 2012) 5.
35 Simsive (n 34).
36 Convention on the Recognition and Enforcement of Foreign Arbitral Awards (n 9) art 5(1)(e); see also
Albert Jan van den Berg, ‘The New York Convention of 1958: An Overview’ (2008) Intl Council Comm
Arb 17 .
564  Enforceability of emergency awards

that an award must be final, many jurisdictions conclude that it must be.37 What con-
stitutes finality under the New York Convention has been open to debate since the
New York Convention’s inception in 1958. Generally, an award is considered final if
it deals with all the claims on the merits, or if the award denies the tribunal’s jurisdic-
tion over the dispute submitted to it.38 In ruling on whether an arbitration award is
final, courts look to the subject matter of the decision rather than whether the tribu-
nal uses the word order or award.39
Our focus here, however, is the USA, where an award must be final to be enforce-
able. The Federal Arbitration Act (FAA) applies to almost all domestic arbitrations.40
But the New York Convention is also a part of federal law since it is incorporated
into American law at 9 USC section 201.41 Section 207 of the FAA requires an inter-

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national award to be confirmed unless the court finds that one of the grounds for re-
fusal or deferral of recognition or enforcement of the award specified in Article V of
the New York Convention applies.42 One of those grounds is considered to be the
lack of a final award.43
The requirement that an award be final before it can be enforceable finds its ori-
gin in judicial precedent interpreting the FAA,44 policy considerations,45 and the lan-
guage of the FAA itself.46 The section 9 of the FAA obligates courts to confirm an
award unless it is ‘vacated, modified, or corrected’ pursuant to sections 10 and 11.47
A court can vacate an award under section 10(d) that is not ‘mutual, final and defi-
nite’.48 (emphasis added.) Thus, unless the award is final, a court in the USA is with-
out jurisdiction to either confirm or deny an award.49

37 Nadia Darwazeh, ‘Article V(1)(e)’ in Recognition and Enforcement of Foreign Arbitral Awards: A Global
Commentary on the New York Convention 301 (Kluwer Law International 2010); see also Daniel E
Gonzalez and Maria Eugenia Ramirez, ‘International Commercial Arbitration: Hurdles When Confirming
a Foreign Arbitral Award in the U.S.’ (2009) 83(10) Fla Bar J 59, 61.
38 See ICCA’s Guide to the Interpretation of the 1958 New York Convention: A Handbook for Judges
(International Council for Commercial Arbitration 2011) 17.
39 ibid.
40 Federal Arbitration Act, 9 USC s 1 (2012), ff. See David E Wagoner, ‘Interim Relief in International
Arbitration: Enforcement is a Substantial Problem’ in AAA Handbook on Internationall Arbitration and
ADR (2nd edn 2010) 145, 148.
41 See ss 301–7 govern awards subject to the Inter-American Convention on International Commercial
Arbitration (Panama Convention).
42 Federal Arbitration Act (n 40) s 207.
43 van den Berg (n 36); see also Ecopetrol, S.A. v Offshore Exploration and Production, 46 F Supp 3d 327, 328
(SDNY 2014) (‘Under the Convention, district courts lack authority to confirm arbitral awards that are
not final awards.’).
44 See Rocket Jewelry Box, Inc. v Noble Gift Packaging,157 F.3d 174, 176 (2d Cir 1998) (per curiam).
45 ‘[A] district court should not “hold itself open as an appellate tribunal” during an ongoing arbitration pro-
ceeding, since applications for interlocutory relief result only in a waste of time, the interruption of the ar-
bitration proceeding, and delaying tactics in . . .’ Michaels v Mariforum Shipping, 624 F.2d 411 (2d Cir
1980) quoting Compania Panemena Maritima, v J.E.Hurlwy Lumber Co., 244 F.2d 286, 288–89 (2d Cir
1957).
46 Michaels ibid, 414.
47 Federal Arbitration Act (n 40) s 9 ff.
48 ibid s 10(d).
49 Metallgesellshaft A.G. v Capitan Constante, 790 F.2d 280 (2d Cir 1985) (‘Lack of finality is a statutory
ground for vacating an arbitration award and for refusing confirmation. . .’).
 Enforceability of emergency awards  565

The requirement of finality for enforceability is exemplified in the often cited case
of Michaels v Mariforum Shipping.50 In that arbitration, the panel, delivering what it
called a ‘Decision & Interim Award’, held the Charterer liable on some of the own-
er’s counterclaims, deferred consideration of others, postponed consideration of the
damages on the counterclaims, but did not decide any of the Charterer’s claims. The
Court had no difficulty in identifying this ‘Interim Award’ as premature and interloc-
utory. There was no statutory jurisdiction to review the ‘Interim Award’ because it
did not decide all the claims submitted. The Court quoted with approval the obser-
vation of the New York Court of Appeals:

For the court to entertain review of intermediary arbitration decisions involv-

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ing procedure or any other interlocutory matter, would disjoint and unduly de-
lay the proceedings, thereby thwarting the very purpose of conservation.51

On the contrary, it is now black-letter law in the USA that if an arbitral tribunal is-
sues an award that finally and definitely disposes of at least one separate independent
claim, that claim can be confirmed even if the award does not decide all the claims
that were submitted. That principle is illustrated in the case of Metallgesellschaft A.G.
v Capitan Constante.52 In deciding one of the issues submitted to them, the arbitra-
tors entered an award for freight charges admittedly due and owing under well-
established maritime law that where freight is payable on delivery, it must be paid
concurrently with the delivery of the goods. Rejecting the argument that the award
could not be confirmed because not all of the issues submitted were resolved, the
Court noted that Metallgesellschaft’s liability for freight was independent and sepa-
rate from the charterer’s claims of unseaworthiness and voluntary deviation and
could be finally determined without reference to those issues.53
Another case, Island Creek Coal Sales Company v City of Gainsville,54demonstrates
that, under US jurisprudence, an interim award that finally and definitively disposes
of a separate, independent claim can be confirmed even when all the claims submit-
ted to arbitration have not yet been decided. In that case, Gainsville requested in the
arbitration proceedings a declaration that Island Creek had breached the long-term
coal sales agreement and that it had the right to terminate it.55 After a full evidentiary
hearing but before the close of the pending receipt of post-hearing briefs, Gainsville
announced that it intended to terminate the agreement. The arbitrators ruled that
Gainsville was required to continue performance of the contract by accepting ship-
ments of coal until further order of the panel. Although the contract was silent on
the question of equitable relief, the Court recognized that the parties had adopted
the AAA Commercial Rules by reference and Rule 43 (now Rule 47) provided that
‘the arbitrator may grant any remedy or relief which the arbitrator deems just and

50 See (n 45).
51 Mobil Oil Indonesia Inc. v. Asamera Oil (Indonesia) Ltd., 43 N.Y.2d 276, 278 (1977).
52 See (n 49).
53 ibid 282.
54 729 F.2d 1046 (6th Cir 1984) (abrogated on ground of venue by Cortez Byrd Chips, Inc. v Bill Harbert
Const. Co., 529 US 193, 120 S. Ct. 1331, 146 L. Ed. 2D 171 (2000)).
55 ibid.
566  Enforceability of emergency awards

equitable and within the scope of the agreement of the parties, including but not lim-
ited to specific performance of a contract’.56
Gainsville argued that under section 10(d) of the FAA that the interim order was
not final, and therefore not subject to confirmation. The Court responded that the
requirement of finality was satisfied because the interim award disposed of ‘one self-
contained issue, namely, whether the City [was] required to perform the contract
during the pendency of the arbitration proceedings’.57 Since the award disposed of a
‘separate, discrete, independent, severable issue’, it could be confirmed.58
Severability of a self-contained issue is not the only ground for enforcing an in-
terim award. Courts also consider as final, interim awards that grant temporary equi-
table relief to preserve the integrity of the award. For example, in Sperry International
Trade v Government of Israel,59 Sperry initiated arbitration proceedings seeking a dec-

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laration that Israel had breached its contractual obligation and demanded damages of
approximately $10 million. Israel denied that it had frustrated Sperry’s attempts to
perform and countered with eleven counterclaims, including Sperry’s non-perfor-
mance of the contract. The panel responded to Sperry’s request to enjoin Israel from
drawing down on a $15 million irrevocable letter of credit, by entering an award or-
dering that the proceeds of the letter of credit be held in an escrow account in the
joint names of Israel and Sperry. In the hearing before the District Court to confirm
the award, Israel contended that the award was an interim decision not ripe for con-
firmation, citing Michaels v Mariforum Shipping.60 This contention was later with-
drawn.61 The Court of Appeals held that the arbitrators acting under the AAA Rules
could grant interim injunctive relief by exercising the ‘power to prevent’ drawing
down the proceeds of a letter of credit, ‘pending a decision [by the arbitrators] of
the claims’.62
There is now a jurisprudential consensus among trial and appellate courts that in-
terim relief that is essential to preserve assets or enforce performance will be consid-
ered final awards.63 As the Ninth Circuit Court of Appeals in Pacific Reinsurance
Management Corp v Ohio Reinsurance Corp observed, such awards in the USA are
considered final awards even though the equitable relief is temporary.64 In Banco de
Seguros del Estado v Mutual, the Second Circuit Court of Appeals recognized as a
ground for enforcement the parties’ contract: ‘it is not the role of the courts to un-
dermine the comprehensive grant of authority to arbitrators by prohibiting an

56 ibid 1049.
57 ibid.
58 ibid.
59 689 F.2d 301 (2d Cir 1982).
60 ibid.
61 ibid, fn 3.
62 Ibid 306.
63 Yonir Techs., Inc. v Duration Sys. (1992) Ltd., 244 F. Supp 2d 195, 204 (SDNY 2002) (finding that emer-
gency awards that ordered outsiders to distribute an account for joint venture assets and restriction on
outlays were final because they protected the final award from being meaningless, whereas an emergency
award that distributed copies of joint venture bank statements and reports was too attenuated from asset
preservation to be considered a final award).
64 935 F.2d 1019, 1023 (9th Cir 1991).
 Enforceability of emergency awards  567

arbitral security award that ensures a meaningful final award’.65 And the Fourth
Circuit concluded in Arrowhead Glob. Sols, Inc. v Datapath, Inc66 that courts in the
USA have the power to confirm and enforce equitable relief as final ‘in order for the
equitable relief to have teeth’.67
So far we have been looking at interim awards deemed to be final for purposes of
enforcement under the FAA. Would there be a different result if the arbitration were
conducted in the USA and subject to the New York Convention? An action arises
under the Convention where the agreements at issue are commercial and not en-
tirely between citizens of the USA.68
Article V of the New York Convention provides the exclusive grounds for refusing
confirmation under the Convention. Article V(1) of the Convention provides in rele-

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vant part:

Recognition and enforcement of the award may be refused, at the request of

the party against whom it is invoked, only if that party furnishes to the compe-
tent authority where the recognition and enforcement is sought, proof that . . .
(c) The Award deals with a difference not contemplated by or not falling
within the terms of the submission to arbitration, or it contains decisions on
matters beyond the scope of the submission to arbitration . . .; or (e) The
award has not yet become binding on the parties, or has been set aside or sus-
pended by a competent authority of the country in which, or under the law of
which, that award was made.69

In Yusuf Ahmed Alghanim & Sons v Toys “R” Us, Inc., the Second Circuit interpreted
Article VI(1)(e) of the New York Convention ‘to allow a court in the country under
whose law the arbitration was conducted to apply domestic arbitral law . . . to a mo-
tion to set aside or vacate that arbitral award’.70 Thus, if an interim award is not final,
it can be vacated under the FAA, 9 USC section 10(a)(4).
The lack of finality was one of the arguments made in an unsuccessful effort to va-
cate an interim award in Ecopetrol, S.A. v Offshore Exploration and Production.71 In an
arbitration seated in the USA under the New York Convention, the arbitral panel is-
sued an interim award requiring that Offshore reimburse the purchasers, Ecopetrol,
SA, and Korea National Oil Corporation, $75,000,000 for taxes paid the Peruvian
government as required by the Stock Purchase Agreement as a prerequisite to the ar-
bitration. In a second interim award, the panel ordered that Offshore satisfy the in-
terim award with funds not derived from the Escrow Amount.72

65 344 F.3d 255, 262 (2d Cir 2003).

66 166 F. App’x 39 , 41 (4th Cir 2006)
67 ibid.
68 Federal Arbitration Act (n 40) s 202; see also Republic of Ecuador v Chevron Corp, 638 F.3d 384, 391 (2d
Cir 2011).
69 Convention on the Recognition and Enforcement of Foreign Arbitral Awards (n 9) art 5.
70 See Yusuf Ahmed Alghanim & Sons v. Toys “R” Us, Inc., 126 F.3d 15, 20 (2d Cir 1997) (citing New York
Convention, art V).
71 46 F. Supp 3d 327 (SDNY 2014).
72 In addition to requiring arbitration by the AAA under its International Arbitration Rules, the Stock
Purchase Agreement provided:
568  Enforceability of emergency awards

The panel noted that its decision to require Offshore to pay initially for taxes as-
sessed against the purchasers had no bearing on the ultimate issue of liability for the
tax obligations. Judge Koetle, drawing on a substantial reservoir of federal jurispru-
dence, concluded:

The Interim Arbitral Awards thus required specific action, resolved the rights
and obligations of the parties with respect to the interim period at issue and
did so without in any way affecting future decisions of the arbitral panel.
Accordingly, the Interim Arbitral Awards are final and confirmable awards.73
(Citation omitted)

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That an interim decision is labelled an order does not prevent it from being consid-
ered an interim final award. Publicis Communication v True North Communications,
Inc. involved arbitration before the LCIA under the United Nations Commission on
International Trade Law Arbitration Rules (UNCITRAL Rules).74 The tribunal or-
dered Publicis to turn over tax records that True North said it needed to file with
the Internal Revenue Service and the Securities Exchange Commission. Since the
UNCITRAL Rules Articles 31–37 refer to final decisions as awards and because the
New York Convention speaks only of recognizing and enforcing an arbitral ‘award’,
according to Publicis the order of the tribunal was unenforceable and it refused to
turn over the records.75 When Publicis failed to comply with the order, True North
went to the US District Court for the Northern District of Illinois for confirmation
of the arbitrators’ decision.76 In affirming the decision, the Court dismissed Publicis’
argument that the Order was not labelled as an award as ‘extreme and untenable for-
malism’.77 The Court noted that

[p]roducing the documents wasn’t just some procedural matter – it was the very is-
sue True North wanted arbitrated. The finality of the tribunal’s ruling [was] dem-
onstrated by the deadline. The tribunal explicitly carved out the tax records issue
for immediate action from the bulk of the matters still pending, stating that ‘[t]he
delivery of the documents should not wait final confirmation in the Final Award.’78

the arbitrators shall have the power to grant any provisional measures that they deem appropri-
ate including but not limited to provisional injunctive relief, and any provisional measures or-
dered by the arbitrators may the extent permitted by applicable law, be deemed to be a final
award on the subject matter of the measures and shall be enforceable as such.

ibid 332–33.
73 ibid 337.
74 206 F.3d 725 (7th Cir 2000).
75 See ibid 728. The New York Convention only uses the word ‘award’ and does not refer to an arbitral or-
der or any other comparable term. The court notes that ‘commentators describe “awards” as final and en-
forceable’, citing to Alan Redfern and Martin Hunter, Law and Practice of International Commercial
Arbitration (Sweet & Maxwell 1991) 360; Mauro Rubino Sammartano, International Arbitration Law
(Kluwer Law International 1989) 410; Douglas D Reichert, ‘Provisional Remedies in the Context of
International Commercial Arbitration’ (1986) 3 Intl Tax Bus Lawyer 368, 395.
76 See (n 74).
77 ibid 728.
78 ibid 729.
 Enforceability of emergency awards  569

Although the arbitration was controlled by the New York Convention, not the FAA,
the Court reasoned that the logic of the decisions under the FAA enforcing certain
interim awards as final awards could be called upon to guide the interpretation of fi-
nality under the New York Convention.79
Finally, it should be noted that the draft Restatement of the Law Third/The US
Law of International Commercial Arbitration takes the position that an arbitral
award may consist of a grant of interim relief.80 The following excerpt from the
Comments is relevant to when we discuss the enforceability of emergency awards:

ordinarily, interim measures are issued to preserve the status quo, to help se-
cure satisfaction of an eventual award, or otherwise to promote the efficacy or

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fairness of the arbitral process. The precise relief they embody varies, but at-
tachments of assets and grants of preliminary injunctive relief are common
modes. An arbitral tribunal that awards interim measures retains the power to
revise, suspend, or retract those remedies as required by the circumstances;
that prerogative distinguishes interim measures from other types of awards,
which are not ordinarily subject to being revised, suspended, or retracted by
the issuing tribunal.81

The question now remains whether the analytical framework employed by courts of
the USA for the enforcement of certain interim awards as final awards can throw any
light on whether the rulings of emergency arbitrators can be judicially enforced when
a recalcitrant party ignores the emergency arbitrator.

3 . A R E E M E R G E N C Y A W A R D S E N F OR CE A B LE IN T E R I M A W A R D S ?
As we have seen with our discussion of interim awards, the predominant global view
is that an emergency award is not final because it can be rescinded or varied by the
arbitral tribunal.82 The ICC Rules Article 29(3) expressly provides that the arbitral
tribunal is not bound by any decision of the emergency arbitrator.83 The rules of the
other institutions similarly provide that the tribunal, once constituted, can modify
the emergency arbitrator’s ruling.84 This apparent lack of finality is called upon to

79 ibid. For an in-depth analysis of this decision see Marc J Goldstein, ‘Interpreting the New York
Convention:When Should an Interlocutoary Arbitral “Order” Be Treated As an Award’AAA Handbook
on International Arbitration & ADR (2010) (Approving court’s recognition of substance over form but
criticizing resort to Chapter 1 of FAA to interpret the NY Convention).
80 Restatement, s 1-1(a): ‘An “arbitral award” is a decision in writing by an arbitral tribunal that sets forth
the final and binding determination on the merits of acclaim, defense, or issue, regardless of whether that
decision resolves the entire controversy before the tribunal Such a decision may consist of a grant of in-
terim relief.’ The definitions have been approved and are official ALI work product. The Restatement,
which is still a work in process, has not addressed the question of the enforceability of awards by an emer-
gency arbitrator.
81 See ibid 19.
82 See fn 34.
83 ICC art 29(3) states that the tribunal ‘may modify, terminate or annul the order or any modification
thereto made by the emergency arbitrator’. See also Luis A Perez and Francisco A Rodriguez, ‘A New
International Option: The ‘Emergency Arbitrator’ ” (Akerman Practice Update, 26 September 2014)
<http://www.akerman.com/documents/res.asp?id¼2072> accessed 8 July 2016.
84 eg ICDR (n 15) art 6(5).
570  Enforceability of emergency awards

support the argument that emergency orders are not awards and cannot be judicially
enforced.
Nevertheless, some scholars recognize that emergency awards and orders are en-
forceable because they may be ‘final’ in terms of the issues they intend to address.85
In other words, emergency awards share enough finality with interim awards to jus-
tify enforcement.86
As previously noted, there are only a few published cases dealing with decisions
by an emergency arbitrator.The most prominent case so far has been Yahoo! Inc. v
Microsoft Corporation.87 It deserves our attention. In 2009, the Emergency Arbitrator
appointed by the AAA issued an award granting Microsoft’s request for injunctive re-
lief. Microsoft and Yahoo had agreed to merge their search engines Bing and

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Panama so that their international search capabilities could better compete with
Google. In 14 out of 16 geographic markets, Yahoo completed the transition of its
advertising business to Microsoft’s Bing Ads system. But when Yahoo informed
Microsoft that it was not proceeding with the migration of its Taiwan and Hong
Kong markets Microsoft considered Yahoo had breached its contract and initiated an
emergency arbitration under their agreement, which provided explicitly for emer-
gency arbitration in some circumstances.
The Emergency Arbitrator issued a decision 18 days after initiation of the emer-
gency award, finding that by refusing to proceed with the scheduled Taiwan and
Hong Kong migrations, Yahoo had breached the parties’ Agreement. Finding further
that the transition was critical because advertiser orders and preferences change over
time, the Arbitrator concluded that the emergency required of the Emergency Rules
in the contract was satisfied and that Yahoo’s breach established irreparable harm to
Microsoft. The Arbitrator then enjoined Yahoo from continuing any pause in transi-
tioning and ‘commanded [it] to use all efforts to complete the Taiwan transition by
October 28, 2013 and the Hong Kong transition by November 11, 2013’.88
Following the issuance of the award, Yahoo moved in the Federal District Court
for the Southern District of New York to vacate the emergency award. Microsoft
countered with a petition for confirmation of the award. Lack of finality was one of
Yahoo’s objections to the confirmation of the award, citing the holding in the now fa-
miliar case of Michaels v Mariforum Shipping, that ‘[w]here arbitrators make an in-
terim ruling that does not purport to resolve finally the issues submitted to them,
judicial relief is unavailable.’89
The time sensitive nature of the Hong Kong and Taiwan transitions and the con-
cerns that Yahoo would not comply with the emergency award without judicial

85 A Yesilirmak, Provisional Measures in International Commercial Arbitration (Kluwer Law International

2005) paras 4–38.
86 eg Publicis Communications v True North Communications, 206 F.3d 725 (7th Cir 2000) (finding that in-
terim order was ‘final’ and could be confirmed under the New York Convention); Pacific Reinsurance
Management Corp v Ohio Reinsurance Corp, 935 F.2d 1019, 1023 (9th Cir 1991); Arrowhead Glob. Sols.,
Inc. v Datapath, Inc., 166 F. App’x 39, 44 (4th Cir 2006).
87 983 F. Supp 2d 310 (SDNY 2013).
88 ibid 315.
89 983 F. Supp 2d at 319. (citing Michaels (n 46)).
 Enforceability of emergency awards  571

confirmation supported the Court’s conclusion that ‘the parties [had] a clear interest
in enforcing the equitable award made by the Arbitrator as soon as possible’.90
In contrast to Yahoo! Inc. v Microsoft Corporation, the poster child for the unenfor-
ceability of decisions by emergency arbitrators is Chinmax Medical Systems v Alere
San Diego.91 Chinmax, with its principal place of business in Shanghai, was the exclu-
sive distributor of medical devices manufactured by Alere, a Delaware Corporation.
Claiming that Chinmax was in material breach of the distribution agreement for fail-
ing to make payments on delivered products totaling in excess of $2.5 million dollars,
Alere informed Chinmax that it would not renew the agreement. Chinmax retained
$2.5 million as a set off for damages Chinmax contended it suffered from Alere’s ille-
gal sales.

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Alere filed a request for an emergency interim award pursuant to the Article 37
(now Article 6) of the ICDR rules. The Emergency Arbitrator issued an ‘Order re
[Alere’s] Request for Emergency Interim Award Pending Arbitration’. The interim
award acknowledged the parties mutual interest in assuring the product registrations
be renewed on time and not allowed to expire. Recognizing that the parties could
not agree on a process, the Emergency Arbitrator ordered Chinmax to promptly de-
liver into escrow documents to ensure that the product registrations would be timely
renewed with China’s product registration and renewal agency. Since Chinmax had
admitted it owed $2.8 million to Alere, the Emergency Arbitrator also ordered that
Chinmax within 10 days of the order to provide Alere a listing of all current bank ac-
counts, bank contact information, bank account numbers, and balances ‘in order to
facilitate any consideration by the full panel of conservancy or other orders regarding
payment of this amount’.92
In an interesting reversal of roles, Alere did not seek confirmation of the award
but instead successfully opposed Chinmax’s motion to vacate the award on the
ground that the Court did not have jurisdiction to review the interim order because
it was not a final award. Citing Publicis Communication v True North Communications,
Inc.93 and Pacific Reinsurance Management Corp v Ohio Reinsurance Corp,94 the Court
concluded that the emergency interim award lacked finality because the ICDR Rules
allow the tribunal once it is constituted to ‘reconsider, modify or vacate the interim
award or order of emergency relief and the emergency arbitrator did not intend the
interim order to be final since the arbitrator stated that the interim order was issued
to facilitate a conservancy order by the full arbitration panel’.95
It is questionable whether this decision has much of a judicial shelf life in light of
the cases holding that interim awards that ensure the viability of the final award pos-
sess sufficient indicia of finality to be enforceable. Interim awards by the fully consti-
tuted panel are also subject to later modification by the panel due to changed
circumstances, but that has not deprived interim awards of being enforced. The

90 ibid.
91 No 10CV2467 WQH NLS, 2011 WL 2135350 (SD Cal 27 May 2011).
92 ibid *3.
93 206 F.3d 725, 729 (7th Cir 2000).
94 935 F.2d 1019, 1023 (9th Cir 1991).
95 See (n 91) *5.
572  Enforceability of emergency awards

decision also ignores the very agreement of the parties. When parties have agreed to
arbitrate disputes pursuant to rules of an arbitral institution, the parties are deemed
to have made the rules a part of their agreement.96
One of the basic concepts of arbitration is that the parties are within certain limits,
‘generally free to structure their arbitration agreements as they see fit . . .’97 As
Professor Carbonneau has written: ‘Freedom of contract allows the parties to the ar-
bitration agreement to write their own rules of arbitration-in effect, to have the agree-
ment to arbitrate establish the law of arbitration for their particular transaction.’98 As
the Supreme Court has stated, the FAA ‘requires courts to enforce privately negoti-
ated agreements to arbitrate, like other contracts, in accordance with their terms’.99
Refusing to enforce an emergency award when the parties have granted the emer-

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gency arbitrator the power to issue emergency awards depreciates the principle of
freedom of contract. Of what value is a contractual provision as important as emer-
gency relief if it is unenforceable? It is true, of course, that parties by agreement can-
not invest courts with jurisdiction where none exists.100 However, since neither the
FAA nor the New York Convention defines award, it is not necessary to construe it
by denying judicial enforcement of an emergency ruling. In the first place, as to de-
fining final, the dictionary definition of ‘final’ includes both the concept of ‘reached
or designed to be reached as the outcome of a process or series of events’ as well ‘al-
lowing no further doubt or dispute’.101 As Judge Weinfeld succinctly noted in
Southern Seas Navigation v Petroleos Mexicanos of Mexico,102 an interim award of equi-
table relief based upon a finding of irreparable harm ‘is not “interim” in the sense of
being an “intermediate” step toward a further end. Rather, it is an end in itself, for its
very purpose is to clarify the parties’ rights in the “interim” period pending a final de-
cision on the merits’.103 The rationale applies equally to an interim award of equita-
ble relief by the emergency arbitrator.
Drawing upon the extensive precedent and the public policy for enforcing interim
awards by a fully constituted panel, an emergency award by a single emergency arbi-
trator should be considered final enough to be enforced where (i) the decision dis-
poses of a separate independent claim or issue; (ii) the decision enforces the parties’
agreement by disposing of whether one party is entitled is entitled to emergency

96 See, eg ICDR (n 15),art 1; Intl Chamber of Commerce, Rules of Arbitration art 6 (2012) <http://www.
iccwbo.org/products-and-services/arbitration-and-adr/arbitration/icc-rules-of-arbitration/> accessed 8 July
2016; AAA (n 16) r-1; Preston v Ferrer, 552 US 346, 128 S Ct 978, 979, 169 L. Ed. 2D 917 (2008) (contract
providing for arbitration in accordance with AAA rules incorporated the rules by reference).
97 Volt Info Sciences, Inc. v. Board of Trustees of Leland Stanford Junior Univ., 489 US 468 (1989).
98 Thomas E Carbonneau, Cases and Materials on Arbitration Law and Practice, 7th ed. (West Academic
Publishing 2014).
99 489 US 468 (1989).
100 See Hall Street Associates v Mattel, 552 US, 576 (2008) (Parties cannot by contract expand FAA’s exclu-
sive grounds for vacating, modifying or correcting arbitration award).
101 The New Oxford American Dictionary, 3rd ed. (Oxford University Press 2015).
102 606 F.Supp 692 (SDNY 1985) (confirming interim award of equitable relief removing charterer’s notice
of claim on lien on vessel because it was preventing owner from transferring vessel and in a transaction
vital to its continued financial viability).
103 606 F. Supp 692, 694 (SDNY 1985).
 Enforceability of emergency awards  573

relief, or (iii) the decision avoids irremediable harm and prevents the award from be-
ing rendered meaningless.104
This latitudinarian construction of finality could be troublesome under some cir-
cumstances. As David E.Wagoner cogently observed: ‘The overriding concern is the
risk of making an order which may turn out to be premature and erroneous after the
facts and law have been fully developed at the hearing on the merits of the dispute.’105
Straining to find finality when the relief is given in media res invites the criticism that it
flirts with casuistry. It also brings to mind the familiar passage from Lewis Carroll’s
Through the Looking Glass: ‘ “When I use a word”, Humpty Dumpty said, in rather a
scornful tone, “it means just what I choose it to mean—neither more nor less”. “The
question is”, said Alice, “whether you can make words mean so many different things”.

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“The question is”, said Humpty Dumpty, “which is to be master—that’s all.” ’
On the other hand, given the lack of any definition of finality in the FAA or New
Y Convention, the pragmatist’s response is not unreasonable. A careful evaluation of
the circumstances begging for judicial enforcement of interim relief as evidenced in
the cases previously cited and recognition of the sound public policy behind such en-
forcement should not invite judicial interference with the arbitration process.106 In
the first place, the emergency arbitrator will be constrained by the contractual stan-
dards for relief. The concept of emergency relief is broad, but it is not limitless. The
interim measures of emergency arbitrators are easily distinguishable from the kinds
of arbitral decisions that are immune from judicial scrutiny such as routine schedul-
ing, evidentiary rulings, and procedural rulings that serve organizational purposes.

3.1 The future of the emergency arbitrator

The emergency arbitrator has been institutionalized in the rules of domestic and in-
ternational arbitral institutions.107 Their use demonstrates that the arbitral commu-
nity has accepted them.108 Like Shelly’s spring following winter, can the academic
community be far behind?109 Since the degree of voluntary compliance with interim
measure issued by the arbitral tribunal is high,110 there is every reason to expect a

104 Diora Ziyaeva, Ian A. Laird, Borzu Sabahi and Anne Marie Whitesell (eds.) Interim and Emergency Relief
in International Arbitration: International Law Institute Series on International Law, Arbitration and Practice
(Juniset LLC 2015) 302.
105 David E Wagoner, Chapter 12, ‘Interim Relief in International Arbitration: Enforcement Is a Substantial
Problem.’ AAA (N 79) (2nd edn, 2010) 145 at 159.
106 See in general William G Bassler’s The Symbiotic Relationship Between International Arbitration and
National Courts, IBA’s Dispute Resolution International, November 2013.
107 See (n 1).
108 See (n 2).
109 ‘If Winter comes, can Spring be far behind?’ Shelley’s ‘Ode to the West Wind.’ Percy Shelley: Poems.
110 Cooper v Ateliers de la Motobecane, S.A., 442 N.E.2d 1239, 1242 (NY 1982) (‘Voluntary compliance with
arbitral awards may be as high as 85%’); see David L Zicherman, ‘The Use of Pre-Judgment
Attachments & Temporary Injunctions in International Commercial Arbitration Proceedings: A
Comparative Analysis of the British & American Approaches’ (1989) 50 U Pitt L Rev 667 (‘The [ICC]
estimates that there are problems with enforcement or execution of the award in fewer than ten percent
of the cases resolved by its Court of Arbitration’); see also Peter JW Sherwin and Douglas C Rennie,
‘Interim Relief Under International Arbitration Rules and Guidelines: A Comparative Analysis’ (2010)
20 Am Rev Intl Arb 317, 324.
574  Enforceability of emergency awards

similar degree of compliance with emergency measures issued by the emergency

arbitrator.111
Such voluntary compliance may be expected because non-compliance could entail
serious consequences. It could impair the credibility of the nonperforming party or af-
ford the aggrieved party with a claim for damages or under some rules a claim for spe-
cific performance as well as lay the groundwork for drawing adverse inferences.112
But there still remains the possibility that a recalcitrant party will ignore the emer-
gency ruling which could seriously undermine the effectiveness of a final award later
on. That possibility was present, as we saw earlier in the discussion of Yahoo!, Inc. v
Microsoft Corporation.113 The Courts of the USA have developed a fairly uniform
method of construing finality to ensure enforceability of interim awards. Despite the

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misgivings from some quarters, this jurisprudence should be available to serve the en-
forceability of rulings of emergency arbitrators that fall within that jurisprudential
framework and the applicable institutional standards governing emergency relief.
Because of the importance of enforcing emergency awards, some states, such as
Singapore and Hong Kong, have adopted legislation expressly providing for the rec-
ognition and enforcement of emergency arbitrator’s orders. On 9 April 2012, the
Singapore Parliament introduced amendments to the International Arbitration Act
which ordered that an emergency award has the same legal status as those handed
down by regularly constituted arbitral tribunals.114 Under HKIAC Administered
Arbitration Rules (2013 Edition), Article 23.1 allows enforcement of the emergency
arbitrator’s decision under sections 22A and B of the Hong Kong Arbitration
Ordinance (in force since 19 July 2013 under Ordinance No 7 of 2013).115
While such legislation is the optimal solution,116 it is not likely to happen anytime soon
in the USA. Nor is it necessary. Following the well-established case law in the USA on the
enforceability of interim awards under certain circumstances, courts are free to focus on
the object and purpose of the emergency award in assessing whether a given emergency
decision may be considered final. The enforcement of arbitral interim measures is key to
fulfilling the aim of the FAA and the New York Convention. Absent a statutory definition
of ‘award’, a purposive interpretation of the finality requirement for emergency arbitrator
awards would enhance the effectiveness of arbitration and enforce the consensual arrange-
ments and expectations of the parties. The jurisprudence of the enforcement of emergency
awards is in the embryonic stage. Its development by the courts remains to be seen.

111 Fabio G Santacroce, ‘The Emergency Arbitrator: A Full-Fledged Arbitrator Rendering an Enforceable
Decision?’ (2015) 31(2) Arb Intl 213.
112 ibid 289; see also David R Haigh and Joanne Luu, ‘Provisional Remedies and Interim Relief in Oil &
Gas Arbitrations’ in James M Gaitis (ed) The Leading Practitioners’ Guide to International Oil & Gas
Arbitration (JURIS 2015) 751, 771.
113 983 F. Supp 2d 310 (SDNY 2013).
114 See SIAC, Singapore makes key amendments to the International Arbitration Act (26 June 2012)<http://
www.siac.org.sg/2013-09-18-01-57-20/2013-09-22-00-31-29/archive-2012/236-singapore-makes-key-
amendments-to-the-international-arbitration-act> accessed 8 July 2016; see also, Simsive (n 34).
115 Stephen Balthasar, ‘HKIAC: What Will the New Arbitration Rules Change?’ (Kluwer Arbitration Blog,
30 September 2013) <http://kluwerarbitrationblog.com/2013/09/30/hkiac-what-will-the-new-arbitra
tion-rules-change> accessed 8 July 2016.
116 For a comprehensive and readable analysis of the current federal law on arbitration and a proposed
reformulation of the Federal Arbitration Act, see Thomas E Carbonneau, Toward a New Federal Law on
Arbitration (Oxford University Press 2014).